depianti et al v. jan-pro franchising international, …case 3:16-cv-05961-edl document 1 filed...
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Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 1 of 12
UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS
GIOVANI DEPIANTI, HYUN KI KIM,KYU JIN ROH and all otherssimilarly situated,
Plaintiffs,
V.
JAN-PRO FRANCHISINGINTERNATIONAL, INC.,
Defendant.
COMPLAINT
I. INTRODUCTION
JURY DEMANDED
Civil Action No.
1. This is a national class action brought on behalf of workers who
have performed cleaning services for Defendant Jan-Pro Franchising
International, Inc. ("Jan-Pro"). The above-named plaintiffs and other similarly
situated individuals have been subjected to systemic misrepresentations and
breaches of contract in their relations with Jan-Pro as described below. Most
notably, Jan-Pro purports to sell cleaning "franchises, knowing it does not have
sufficient business to satisfy its obligations under its franchise agreements.
Individuals purchase these "franchises" for substantial sums of money, based on
Jan-Pro's misrepresentations about the guaranteed amount of monthly income
the franchises will provide. In addition, Jan-Pro has also improperly misclassified
these workers as independent contractors and thereby denied them various
benefits to which they are entitled as employees under the wage laws of various
Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 2 of 12
states, including guaranteed minimum wage, overtime pay, other wage
protections, and other benefits of employment, such as eligibility for
unemployment and workers' compensation. In this action, the above-named
plaintiffs seek to recover, on their own behalves and on behalf of all similarly
situated individuals, compensation for these violations, statutory enhancement of
damages as allowed by law, and attorneys' fees and costs.
PARTIES
2. Plaintiff Giovani Depianti is an adult resident of Somerville,
Massachusetts, who performed cleaning services for Jan-Pro in Massachusetts
from approximately June 2003 to December 2006.
3. Plaintiff Hyun Ki Kim is an adult resident of Philadelphia,
Pennsylvania, who performed cleaning services for Jan-Pro in New Jersey and
Pennsylvania from approximately November 1997 to May 2005.
4. Plaintiff Kyu Jin Roh is an adult resident of Philadelphia
Pennsylvania, who performed cleaning services for Jan-Pro in Pennsylvania from
approximately December 2003 to December 2004.
5. This is a class action that the above-named plaintiffs bring on their
own behalves and on behalf of all others similarly situated, namely all other
individuals who have performed cleaning services for Jan-Pro within the United
States and have been subjected to the legal violations described in this
complaint. The class (and any subclasses that may be appropriate) meets all of
the requirements of Rule 23 of the Federal Rule of Civil Procedure.
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Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 3 of 12
6. Defendant Jan-Pro Franchising International, Inc. is a domestic
corporation with its principal place of business in Alpharetta, Georgia.
7. Upon information and belief, Jan-Pro works closely with regional
corporate affiliates, all of which do business under the name "Jan-Pro, in order
to sell cleaning "franchises" to individuals. Jan-Pro requires all individuals
(including the named plaintiffs) to sign the same standard-form contracts, to
adhere to the same standards and methods in providing cleaning services, and
to operate under the name "Jan-Pro."
III. JURISDICTION AND VENUE
8. Jurisdiction is invoked in this Court pursuant to 28 U.S.C.
1332(d)(2).
IV. STATEMENT OF FACTS
A. Jan-Pro's Misrepresentations and Breaches of Contract
9. Jan-Pro employs cleaning workers across the United States to
perform cleaning work for customers who negotiate cleaning services accounts
with Jan-Pro. These workers have included the above-named plaintiffs.
10. Jan-Pro requires its cleaning workers to sign "franchise
agreements" with its regional affiliates in order to obtain work, and it labels its
cleaning workers as "franchisees."
11. In order to induce workers to sign these franchise agreements, Jan-
Pro (through its agents) negligently and/or intentionally misrepresents that it has
sufficient business to provide the monthly income it promises the workers in their
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Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 4 of 12
agreements. In fact, Jan-Pro does not have enough accounts to offer to workers
who have signed franchise agreements.
12. Thus, Jan-Pro knows it does not have sufficient business to satisfy
the terms of the franchise agreements when it advertises franchises, solicits
franchisees, and enters into franchise contracts. Jan-Pro (through its agents)
knowingly and willfully solicit and enters into agreements which it knows it cannot
perform.
13. Jan-Pro also misrepresents that workers will receive a higher hourly
rate of pay for their work than Jan-Pro knows they will be able to earn.
14. Jan-Pro's franchise agreement is a form contract of adhesion
establishing the terms and conditions of employment of Jan-Pro cleaning
workers.
15. None of the Jan-Pro cleaning workers is able to negotiate for
different terms and conditions from those appearing in the form franchise
agreement.
16. The form franchise agreement is written exclusively in English, in
highly technical and confusing language, with misleading section headings and
provisions regarding waivers of important rights buried within the agreement.
17. The form franchise agreement is not available in other languages,
although many of the workers who sign these form franchise agreements have
little to no fluency in English.
18. Consequently, as Jan-Pro knows, the workers do not understand
the terms of the agreement, whether or not they speak English.
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19. Jan-Pro targets immigrants in particular because they are easily
victimized by Jan-Pro's misrepresentations and other systemic legal violations,
as described herein.
20. Pursuant to these form franchise contracts, individuals pay
substantial sums of money as franchise fees in order to obtain cleaning
accounts. For example, Mr. Depianti paid Jan-Pro an initial fee of $23,400, and
Mr. Kim paid Jan-Pro an initial fee of $14,400.
21. In exchange for these large franchise fees, Jan-Pro guarantees a
certain level of monthly income beginning after the workers have made down
payments to purchase their franchise and completed their training period.
22. However, Jan-Pro systemically breaches its written agreements by
not providing or offering sufficient or adequate work as promised to produce the
guaranteed level of income.
23. For example, Mr. Depianti was offered $8,333 per month in
business, but he typically received less than $3, 000 per month during his time
working for Jan-Pro.
24. Mr. Kim was offered approximately $7,000 per month in business,
but he typically received less than $4, 000 per month during his time working for
Jan-Pro.
25. Through a variety of means involving misrepresentation, Jan-Pro
purports to satisfy its obligations under the form franchise agreements when it
has come nowhere near satisfying those obligations. Through these means,
Jan-Pro attempts to make it appear that it is the workers' fault, rather than Jan-
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Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 6 of 12
Pro's, that they do not have sufficient accounts to satisfy their monthly income
guarantee.
26. For example, Jan-Pro negligently and/or intentionally misrepresents
the number of hours per week that will be required to service the accounts
offered. These misrepresentations are used to induce workers to accept the
accounts toward their guaranteed level of income. The accounts typically require
substantially more hours of work than Jan-Pro represents.
27. In addition, Jan-Pro promises cleaning accounts that are
geographically convenient to one another and convenient to the workers' homes.
However, the accounts are typically spread very far apart, making it very
inconvenient, if not impossible, to accept or perform the work for these accounts.
28. Jan-Pro typically contends that it has fulfilled its obligations under
the franchise contract by offering accounts, knowing that accounts offered could
not be accepted due to geographic inconvenience, sheer impossibility of
performing the number of hours of work required to service the accounts, or rates
of pay well below what was promised.
29. Jan-Pro also frequently violates the form franchise agreement by
taking accounts away without warning and for no justifiable reason. Also in
violation of the agreement, Jan-Pro gives no opportunity to correct or challenge
alleged deficiencies in workers' performance.
30. When doing so, Jan-Pro frequently tells the workers performing the
cleaning services that the customers were dissatisfied with their work, when in
fact the customers were satisfied with their work.
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Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 7 of 12
31. After taking an account away from a worker, Jan-Pro then can offer
the account to another worker who has signed a franchise agreement to count
toward that person's monthly guarantee. In this way, Jan-Pro churns the
accounts it has, in order to make it appear that it has satisfied its franchise
agreements.
32. When Jan-Pro does not satisfy the terms of the workers' franchise
agreements by not offering sufficient accounts (that are free from
misrepresentations) or by taking away accounts without justification or warning, it
does not refund the franchise fees that the workers have already paid.
33. Indeed, Jan-Pro requires workers to continue making payments on
their franchise fees, billing them for these payments, even when they have no
further work from Jan-Pro.
34. In addition, Jan-Pro deducts excessive fees from the payments it
makes to the workers under the franchise agreements.
35. Jan-Pro significantly underbids cleaning contracts with its clients.
As a result of this underbidding and the deduction of excessive fees from their
pay, the workers who have contracted with Jan-Pro receive far less pay for their
work than the fair value of their services and far less pay than they were
promised on an hourly and monthly basis.
7
Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 8 of 12
B. Jan-Pro's Misclassification of Its Cleaning Workers as
Independent Contractors
36. Jan-Pro purports to classify its cleaning workers as independent
contractors. However, these workers are in fact employees under the statutes
and common law of various states.
37. The behavioral and financial control manifested over these workers
by Jan-Pro demonstrates that the workers are employees rather than
independent contractors.
38. The cleaning workers perform services within Jan-Pro's usual course
of business, which is to provide cleaning services to customers.
39. Also, Jan-Pro instructs the cleaning workers in how to do their work
and dictates their performance of the details of their jobs.
40. The cleaning workers generally do not work in an independently
established trade, occupation, profession, or business. Instead, as required by
their contracts, the cleaning workers perform cleaning services exclusively for Jan-
Pro's clients.
41. Also, the cleaning workers do not represent themselves to the public
as being in an independent business to provide cleaning services, and they
typically have not invested in an independent business apart from their payment of
"franchise" fees to Jan-Pro.
42. Because of their misclassification by Jan-Pro as independent
contractors, these cleaning workers have not received the benefits that inure
from the employment relationship under law.
8
Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 9 of 12
43. For example, Jan-Pro's cleaning workers frequently do not receive
the minimum wage for the work they perform.
44. Although many of them work more than 40 hours per week, they do
not receive one and one-half times their regular rate for hours worked in excess
of 40 hours per week.
45. Numerous deductions are made from their pay, which constitute
improper deductions from wages. For example, Jan-Pro deducts payments
towards "franchise fees, interest payments, payments for Jan-Pro to manage the
workers' cleaning accounts, and other payments. It also withholds workers' pay
when it contends that Jan-Pro clients have not paid their bills.
46. These cleaning workers do not receive pay for their time spent
traveling between different accounts during the work day.
47. Jan-Pro denies that these workers are eligible for unemployment
payments when they lose their jobs, or when they are constructively discharged
by having their cleaning accounts taken away and not replaced.
48. Also, because of the misclassification, Jan-Pro's cleaning workers
are not covered by workers' compensation when they are injured on the job.
COUNT I
(Unfair and Deceptive Business Practices)
Defendant's conduct in inducing the plaintiffs and class members to
purchase purported cleaning "franchises" and its conduct with respect to the
plaintiffs and class members in the course of, and following, their performing
cleaning services as described above constitutes unfair and deceptive practices
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Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 10 of 12
in violation of the statutory and common law of the several states, including
Massachusetts Gen. L c. 93A, the Pennsylvania Unfair Trade Practices and
Consumer Protection Law, 73 P.S. 201-1 et seq., and the New Jersey
Consumer Fraud Act, N.J.S.A. 56:8-1 et. seq.
COUNT II
(Misclassification as Independent Contractors)
Defendant has knowingly and willfully misclassified plaintiffs and class
members as independent contractors instead of employees, in violation of the
statutory and common law of the several states, including Mass. Gen. Laws c.
149 148B.
COUNT III
(Wage Law Violations)
Defendant's misclassification of its cleaning workers as independent
contractors has deprived them of the protections of the wage laws of the several
states, including guaranteed minirnuni wage, overtime pay, and timely payments
of all wages owed without improper deductions from pay, in violation of the wage
laws of the several states, including Mass. Gen. L. c. 151 1, 1A, and 1B, and
Mass. Gen. L. c. 149 148, 43 P.S. 260.1 et seq., 43 P.S. 333.104, and N.J.
St. 34.11-56a4.
10
Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 11 of 12
COUNT IV
(Misrepresentation)
Defendant has committed intentional and/or negligent misrepresentation in
its representations to the plaintiffs and class members, as described above, in
violation of the common law of the several states.
COUNT V
(Quantum Meruit)
The plaintiffs and class members have been deprived by Defendant of the
fair value of their services and are thus entitled to recovery in quantum meruit
pursuant to the common law of the several states.
COUNT VI
(Unjust Enrichment)
Through the conduct described above, Defendant has been unjustly
enriched under the common law of the several states.
JURY DEMAND
Plaintiffs request a trial by jury on all their claims.
WHEREFORE, Plaintiffs request that this Court enter the following relief:
1. Certification of this case as a national class action;
2. Certification of subclasses of Jan-Pro workers who performed work
in states with particular statutory claims described in this complaint
(or other claims for which subclasses may contribute to the
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Case 3:16-cv-05961-EDL Document 1 Filed 04/18/08 Page 12 of 12
manageability of this litigation), including Massachusetts,
Pennsylvania, and New Jersey;
3. Damages attributable to Jan-Pro's statutory and common law
violations;
4. Statutory enhancement of damages as allowed by law;
5. Declaratory and injunctive relief, requiring Jan-Pro to cease its
illegal practices;
6. Any other relief to which the plaintiffs and class members may be
entitled.
Respectfully submitted,
GIOVANI DEPIANTI, HYUN KI KIM,KYU JIN ROH, and all others similarlysituated,
By their attorneys,
Shannon Liss-Riordan, BBO #64 716
Hillary Schwab, BBO #666029PYLE, ROME, L1CHTEN, EHRENBERG
& LISS-R1ORDAN, P.C.18 Tremont Street, 5th FloorBoston, MA 02108(617) 367-7200
Dated: April 18, 2008
12
IV. NATURE OF SUIT Place an "X" in Onc Box Only)cOMBRA
FOR OFFICE USE ONLY
RTS
V11111,,,,,17 L
Foreign Country
RELRUPRNRtE1IWI3I6 H Ai mama .GPRER1 Tmuursasido
Case 3:16-cv-05961-EDL Document 1-1 Filed 04/18/08 Page 1 of 1
%IS 44 (Rev. 12/07) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as providedby local rules ofcourt. This form, approved by the Judicial Conference ofthe United States in September 1974, is required for the use ofthe Clerk ofCourt for the purpose of initiati»gthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I. (a) PLAINTIFFS DEFENDANTS
Giovani Depianti, Hyun Ki Kim, Kyu Jin Rob, et al. Jan-Pro Franchising International, Inc.
(b) County ofResidence ofFirst Listed Plaintiff Middlesex County of Residence ofFirst Listed Defendant Fulton, GA
(EXCEPT IN LLS. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
LAND INVOLVED.Shannon Liss—Riordan, Esq.
(c) Attorney's (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Pyle, Rome, Lichten, Ehrenberg & Liss-Riordan, P.C. 18 Tremont
Street, Suite 500, Boston, MA 02108 (617) 367-7200
II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP oy PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)O I U.S. Government 0 3 Federal Question FIT DEF PTF DEE
Plaintiff (U.S. Government Not a Party) Citizen ofThis State Ig I 0 I Incorporated or Principal Place 0 4 0 4of Business In This State
0 2 U.S. Government tgl 4 Diversity Citizen ofAnother State 0 2 0 2 Incorporated and Principal Place 0 5 l!I 5
Defendant of Business In Another State(Indicate Citizenship of Parties in Item III)
Citizen or Subject ofa 0 3 0 3 Foreign Nation 0 6 0 6
0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 610 Agriculture 0 422 Appeal 28 USC 158 0 400 State Reapportionment0 120 Marine 0 310 Airplane 0 362 Personal Injury 0 620 Other Food & Drug 0 423 Withdrawal 0 410 Antitrust
O 130 Miller Act 0 315 Airplane Product Med. Malpractice 0 625 Drug Related Seizure 28 US C 157 0 430 Banks and BankingO 140 Negotiable Instrument Liability 0 365 Personal Injury of Property 21 USC 881 0 450 Commerce
O 150 Recovery of Overpayment 0 320 A'ssault, Libel & Product Liability 0 630 Liquor Laws r-opEitml-p: -0 460 Deportation&Enforcement ofJudginent Slander 0 368 Asbestos Personal 0 640 A.R. & Trtick 0 820 Copyrights 0 470 Rasketeer Influenced and
O 151 Medicare Act ri 330 Federal Employers' Injury Product 0 650 Airline Regs. 0 830 Patent Corrupt OrganizationsO 152 Recovery of Defaulted Liability, Liability 0 660 Occupational 0 840 Trademark 0 480 Consumer Credit
Student Loans 0 340 Martne PERSONAL PROPERTY Safety/Health 0 490 Cable/Sat TV
(Excl. Veterans) 0 345 Marine Product 0 370 Other Fraud 3 690 Other 0 810 Selective Service
O 153 Recovery of Overpayment Liability 0 371 Truth in Lending ygiatRIREVIIIENBORIMigaYfflattiBMISSIMIVITOSEWRIIIIVE. 0 850 Securities/Commodities/
of Veteran's Benefits 0 350 Motor Vehicle 3 380 Other Personal 0 710 Fair Labor Standards 0 861 H1A (1395ff) ExchangeO 160 Stockholders' Suits 0 355 Motor Vehicle Property Damage Act 0 862 Black Lung (923) 0 875 Customer ChallengeO 190 Other Contract Product Liability 0 385 Property Damage 0 720 Labor/Mgmt. Relations 0 863 DIWC/DIWW (405(g)) 12 USC 3410
O 195 Contract Product Liability 0 360 Other Personal Product Liability 0 730 Labor/Mgmt.Reporting 0 864 SSID Title XVI 0 890 Other Statutory Actions
O 196 Francl Ini&Disclosure Act 0 865 RSI (405(g)) 0 891 Agricultural Acts
el G t,: 'Wid-01:01016RISTIm-Nthi 0 740 Railway Labor Act *-I DE01AILI1MISITEES1416 0 892 Economic Stabilization Act
0 210 Land Condemnation 0 441 Voting 0 510 Motions to Vacate ig 790 Other Labor Litigation 0 870 Taxes (U.S. Plaintiff 0 893 Environmental Matters
0 220 Foreclosure 0 442 Employment Sentence 0 791 Empl, Ret, inc. or Defendant) a 894 &term, Allocation Act
0 230 Rent Lease & Ejectment 0 443 Housing/ Habeas Corpus: Security Act 0 871 IRS—Third Party 0 895 Freedom ofInformation
0 240 Torts to Land Accommodations 0 530 General 26 USC 7609 Act
0 245 Tort Product Liability 0 444 Welfare 0 535 Death Penalty :37..iii=aZiaMaaal 0 90DAppeal of Fee Determination
0 290 All Other Real Property 0 445 Amer. wfDisabilities 0 540 Mandamus & Other m 462 Naturalization Application Under Equal Access
Employment 0 550 Civil Rights 0 463 Habeas Corpus to Justice
O 446 Amer. w/Disabilities 0 555 Prison Condition Alien Detainee 0 950 Constitutionality of
Other 0 465 Other Immigration State Stamtes
O 440 Other Civil Rights Actions
V. ORIGIN (Place an "X" in One BoxOnly). Apereal to District
at 1 Original 0 2 Removed fromTransferred from
0 3 Remanded from I3 4 Reinstated or 0 5 0 6 Multidistrict ED 7 ju e' frcmanother district Magistrate
Proceeding State Court Appellate Court Reopened Litigation(specify) Judgment
'Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 28 U. S.C. §1332kd)., 2
VI. CAUSE OF ACTION I Br•!iefdescription of cause:
VII. REQUESTED IN til CHECK IF THIS IS A CLASS ACTION DEMAND cributs. r tb only ir ciemanaeci in compiamt.
COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: lie Yes CP No
VIII. RELATED CASE(S)(See instnictions):
IF ANY JUDGE DOCKET NUMBER
-.1 1 AnSIGNATURE OF ATTORN Y OF RECORD tDATE
04/18/2008
RECEIPT 6 AMOUNT APPLYING IFP JUDGE MAG. JUDGE
Case 3:16-cv-05961-EDL Document 1-2 Filed 04/18/08 Page 1 of 1
UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS
1. Title of case (name of first party on each side only) Depianti v. Jan-Pro Franchising International, Inc.
2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).
E1160, 410, 470, 636, R.23, REGARDLESS OF NATURE OF SUIT.
is 11. 195, 196, 368, 400, 440, 441-446, 540, 550, 555, 625, 710, 720, 730, *Also complete AO 120 or AO 121740, 790, 791, 820*, 830*, 840*, 850, 890, 892-894, 895, 950. for patent, trademark or copyright cases
DIll. 110, 120, 130, 140, 151, 190, 210, 230, 240, 246, 290, 310,316, 320, 330, 340, 345, 350, 356, 360, 362, 365, 370, 371,380, 386, 450, 891.
IV. 220, 422, 423, 430, 460, 462, 463, 465, 480, 490, 510, 530, 610,620, 630, 640, 650, 660, 690, 810, 861-865, 870, 871, 875, 900.
Dv. 150, 152, 153.
3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in thisdistrict please indicate the title and number of the first filed case in this court.
4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES E NO ea6. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC
§2403)YES 1-1 NO vi
If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?YES El NO E
6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?
YES E NO 1717. Do all of the parties in this action, excluding governmental agencies of the united states and the Commonwealth of
Massachusetts ("governmental agencies"), residing in Massachusetts reside in the same division? (See Local Rule 40.1(d)).
YES NO E]A. If yes, in which division do all of the non-governmental parties reside?
Eastern Division WI Central Division D Western Division LIB. If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,
residing in Massachusetts reside?
Eastern Division EI Central Division Western Division LI8. If filing a Notice of Removal are there any motions pending in the state court requiring the attention of this Court? (If yes,
submit a separate sheet identifying the motions)YES El NO LI
(PLEASE TYPE OR PRINT)ATTORNErS NAME Shannon Liss-Riordan, Esq.ADDRESS Pyle, Rome, Lichten, Ehrenberg & Liss-Riordan, P.C., 18 Tremont St., Ste. 500, Boston, MA 02108
TELEPHONE NO.(617) 367-7200
(CategoryForm-08.wpd -2(8108)
ClassAction.orgThis complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: Jan-Pro Franchising International Facing Misrepresentation Suit